USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 1 of 39

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6396

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DONZELL ALI MCKINNEY,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:12-cr-00085-MR-WCM-1; 1:16- cv-00149-MR)

Argued: September 13, 2022 Decided: February 16, 2023

Before WILKINSON, Circuit Judge, and MOTZ and KEENAN, Senior Circuit Judges.

Reversed and remanded by published opinion. Senior Judge Motz wrote the opinion, in which Senior Judge Keenan concurred. Judge Wilkinson wrote a dissenting opinion.

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 2 of 39

for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

2 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 3 of 39

DIANA GRIBBON MOTZ, Senior Circuit Judge:

In 2012, Donzell Ali McKinney pled guilty to two counts — conspiracy to commit

Hobbs Act robbery and a violation of

(c) for discharging a firearm during

and in relation to that conspiracy. Under subsequent controlling precedent, McKinney now

stands convicted of, and imprisoned for, conduct that does not violate § 924(c) and in fact

is not criminal. Accordingly, he brought this

motion asking the district

court to vacate his § 924(c) conviction. The district court refused to do so, and McKinney

now appeals. For the reasons that follow, we reverse and remand the case to the district

court with instructions to vacate McKinney’s § 924(c) conviction and for further

proceedings consistent with this opinion.

I.

This case arises from a September 2011 conspiracy to rob a barbecue restaurant in

Asheville, North Carolina. At around 2:00 a.m., McKinney and his coconspirator

approached two women who had left the restaurant. After hitting one woman on the head,

McKinney ordered them to the ground and started beating on the restaurant’s door. When

the restaurant manager came to the door, McKinney pointed a gun at the manager,

demanded he open the door, discharged the gun (wounding no one), and ordered him to

hand over money in the safe. McKinney and his coconspirator fled with $451.

In a three-count indictment, the Government charged McKinney with substantive

Hobbs Act robbery, Hobbs Act conspiracy, and a violation of § 924(c) predicated on

substantive Hobbs Act robbery. J.A. 6‒9. But a careful review of the record reveals that

McKinney expressly refused to plead guilty to substantive Hobbs Act robbery and the

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§ 924(c) count predicated on it. S.J.A. 14‒16. Indeed, two plea hearings failed because of

McKinney’s persistent refusal to plead guilty to those counts. S.J.A. 28‒31.

The Government then filed a bill of information charging McKinney with Hobbs

Act conspiracy and a single § 924(c) count with Hobbs Act conspiracy as the sole predicate

offense. J.A. 18‒20. McKinney agreed to plead guilty to these two counts in the bill of

information in exchange for the Government’s agreement to dismiss the remaining charges.

S.J.A. 62. McKinney’s plea agreement, entered in 2012, included a waiver of the right to

contest his conviction and sentence except on grounds of ineffective assistance of counsel

or prosecutorial misconduct. The district court sentenced McKinney to 70 months for

Hobbs Act conspiracy and 120 months for the § 924(c) conviction predicated on Hobbs

Act conspiracy, to run consecutively. McKinney did not pursue a direct appeal.

Four years later, in 2016, McKinney filed a § 2255 motion to vacate his § 924(c)

conviction and sentence. In his motion, he pointed out that Johnson v. United States,

(2015), had struck down the residual clause of the Armed Career Criminal Act

(ACCA) as unconstitutionally vague, and Welch v. United States,

(2016),

held Johnson retroactively applicable on collateral review. McKinney argued that because

§ 924(c)’s residual clause was “functionally indistinguishable” from the ACCA’s residual

clause, his § 924(c) conviction could not stand. The district court stayed the matter pending

decisions from the Supreme Court and this court. Three years later, the Supreme Court

decided United States v. Davis,

(2019), holding that the residual clause of

§ 924(c), too, was unconstitutionally vague. McKinney filed a supplemental motion

arguing that Davis further compelled vacatur of his § 924(c) conviction.

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The Government moved to dismiss McKinney’s § 2255 motion, asserting that the

appeal waiver in his plea agreement and procedural default foreclosed his claim. In January

2020, the district court granted the Government’s motion to dismiss. Acknowledging that

McKinney’s § 924(c) conviction was likely invalid, the district court nonetheless found

that the appeal waiver barred his challenge and that McKinney failed to show cause and

prejudice or actual innocence to excuse his procedural default. We granted McKinney a

certificate of appealability on the following issues: (i) whether his § 924(c) conviction is

invalid in light of Davis; (ii) whether his appeal waiver bars his claim; (iii) whether he has

demonstrated cause and prejudice to excuse his procedural default; and (iv) whether he has

demonstrated actual innocence to excuse his procedural default.

II.

We review the district court’s denial of a § 2255 motion de novo. United States v.

Palacios,

(4th Cir. 2020).

Although we typically reach the underlying merits of a § 2255 motion last, this is

an unusual petition in that the merits are clear-cut. Indeed, the Government concedes the

invalidity of McKinney’s § 924(c) conviction predicated on Hobbs Act conspiracy. See

Br. of the United States 16.

The concession is well-taken. In Davis,

, the Supreme Court held

that the residual clause of § 924(c) was unconstitutionally vague, leaving only the question

of whether Hobbs Act conspiracy could be a “crime of violence” under the elements clause

of § 924(c). We held in United States v. Simms,

, 233–34 (4th Cir. 2019) (en

banc), that Hobbs Act conspiracy also could not constitute a “crime of violence” under the

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elements clause of § 924(c). Moreover, we have since held that Davis “applies

retroactively to cases on collateral review.” In re Thomas,

(4th Cir.

2021).

The record is clear that the sole predicate offense underlying McKinney’s § 924(c)

conviction is Hobbs Act conspiracy. J.A. 18‒20. McKinney’s plea agreement stated that

he was agreeing to enter a guilty plea to the two counts set forth in the bill of information.

J.A. 151. The bill of information charged McKinney with Hobbs Act conspiracy and use

of a firearm “during and in relation to a crime of violence, that is conspiracy to commit

interference with commerce by threats and violence,” in violation of § 924(c). J.A. 19

(emphasis added). Because Hobbs Act conspiracy does not constitute a predicate “crime

of violence” for a § 924(c) violation, McKinney stands convicted of a crime that no longer

exists. Ordinarily, that alone would entitle him to relief on his § 2255 motion.

III.

The Government contends, however, that McKinney executed a plea agreement that

bars his claim. Specifically, it argues that because McKinney does not raise either of the

two types of claims expressly exempted from the waiver in his plea agreement —

ineffective assistance of counsel and prosecutorial misconduct — he cannot challenge his

conviction on any other grounds.

Although McKinney does not raise those claims or contend that his appeal waiver

was invalid, he nonetheless argues that we should refuse to enforce it. We can do so under

a few limited circumstances. See, e.g., United States v. Marin,

(4th Cir.

1992) (recognizing that we refuse to enforce an appeal waiver when a sentence is imposed

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in excess of the statutory maximum or is based on a constitutionally impermissible factor).

Among these is the most fundamental reason, that is, if enforcing an appeal waiver would

result in a “miscarriage of justice.” See United States v. Adams,

(4th

Cir. 2016); United States v. Johnson,

(4th Cir. 2005).

As we explained in Adams, to establish such a miscarriage of justice, a defendant

need only make “a cognizable claim of actual innocence.”

(emphasis

added). The appeal waiver in Adams was substantially similar to the one in this case: it

“waived [Adams’s] right to challenge his conviction or sentence in a motion pursuant to

unless he did so on the basis of ineffective assistance of counsel or

prosecutorial misconduct.”

. And in Adams, we found that, in light of intervening

precedent invalidating a § 922(g) conviction because it was no longer based on a valid

predicate, the defendant made “a cognizable claim of actual innocence.” Id. at 182. For

this reason, the defendant in Adams met the standard for miscarriage of justice, and his

appeal waiver did not bar his claim. Id. at 183.

That logic applies here. Under Davis and Simms, Hobbs Act conspiracy no longer

qualifies as a predicate offense for a § 924(c) conviction. McKinney, like Adams, has

made a cognizable claim of actual innocence and so, like Adams, has satisfied the

miscarriage-of-justice requirement. See also United States v. Sweeney,

,

396–97 (4th Cir. 2021) (declining to enforce an appeal waiver and vacating a § 924(c)

conviction because attempted Hobbs Act robbery and Hobbs Act conspiracy are no longer

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valid predicates). 1 Accordingly, McKinney’s appeal waiver does not bar his claim for

relief.

IV.

Absent a controlling appeal waiver, McKinney’s claim ordinarily would not be

barred from collateral review. However, the Government contends that an affirmative

defense, i.e., procedural default, bars consideration of his claim on the merits. This defense

rests on a contention that a defendant has failed to raise the claim at issue during his initial

criminal proceeding or on direct appeal. See United States v. Harris,

(4th Cir. 2021). Without an excuse for this failure, the procedural-default doctrine

precludes a defendant from asserting that claim on collateral review.

Two showings excuse a procedural default: a defendant’s demonstration of “either

cause and actual prejudice or that he is actually innocent.” Bousley v. United States,

(1998) (cleaned up). As directed by the Supreme Court, we first address

cause and prejudice for procedural default. See Dretke v. Haley,

, 393–94

(2004) (stating that when an actual-innocence excuse is raised, a court “must first address

In a Rule 28(j) letter, the Government relies on a statement respecting the denial 1

of certiorari in Grzegorczyk v. United States,

(2022), to contend that McKinney’s guilty plea precludes this argument. Given that the “denial of a writ of certiorari imports no expression of opinion upon the merits of the case,” and that “opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits,” Teague v. Lane,

(1989) (quoting United States v. Carver,

(1923)), we reject this contention as a basis for overruling binding circuit precedent. 8 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 9 of 39

all . . . other grounds for cause to excuse the procedural default”). 2 Because we find cause

and prejudice here, we need not reach the actual-innocence excuse for procedural default.

A.

We begin with cause. Generally, the existence of cause for procedural default turns

on whether “some objective factor external to the defense” prevented counsel from raising

the claim on direct appeal. See Murray v. Carrier,

(1986). For

example, a claim that “is so novel that its legal basis is not reasonably available to counsel”

may constitute cause. Reed v. Ross,

(1984) (emphasis added). In Reed, the

Supreme Court delineated three situations in which the novelty of a claim could constitute

cause:

First, a decision of [the Supreme] Court may explicitly overrule one of [its] precedents. Second, a decision may “overtur[n] a longstanding and widespread practice to which [the Supreme] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” And, finally, a decision may “disapprov[e] a practice [the Supreme] Court arguably has sanctioned in prior cases.”

We note that we have already expressly rejected the Government’s procedural- 2

default challenge to a successive § 2255 motion raising a Davis claim, reasoning that Davis “established a new rule of constitutional law made retroactive on collateral review.” See United States v. Jackson,

, 283 & n.3 (4th Cir. 2022). It would be odd indeed to reject the Government’s procedural-default defense in Jackson but not in this case, which also involves a Davis claim. The Government, however, insists that Jackson does not control here because in Jackson, we ultimately denied the defendant’s claim on the merits, and so the procedural-default analysis was not “necessary” to our outcome. The Government also argues that Jackson failed to address earlier precedent requiring cause and prejudice and that Jackson involved a jury trial, not a guilty plea. Because, as our analysis within explains, McKinney has demonstrated cause and prejudice that would overcome any procedural default, we need not here resolve the force of Jackson. 9 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 10 of 39

at 17 (quoting United States v. Johnson,

, 551–52 (1982)). Further, as

Reed instructs, finding cause for cases falling into the third category depends on “how

direct [the Supreme] Court’s sanction of the prevailing practice had been, how well

entrenched the practice was in the relevant jurisdiction at the time of defense counsel’s

failure to challenge it, and how strong the available support is from sources opposing the

prevailing practice.”

at 17–18.

The third Reed category contemplates precisely the type of novel claim McKinney

advances here. At the time McKinney pled guilty in 2012 and was sentenced in 2013, the

Supreme Court had affirmatively upheld the constitutionality of residual clauses like the

one at issue here. In the years leading up to McKinney’s guilty plea and sentence, the

Supreme Court had repeatedly treated the residual clause of the ACCA as if it were

sufficiently determinate to put an ordinary person on notice of what conduct it prohibited.

See, e.g., Sykes v. United States,

(2011); James v. United States,

, 210 n.6 (2007).

In fact, in 2007 in James,

n.6, the Court summarily rejected the

argument that the ACCA’s residual clause was unconstitutionally vague. And in doing so,

it emphasized that “similar formulations” appeared in other federal statutes.

3 In sum,

when McKinney pled guilty in 2012 and was sentenced in 2013, Supreme Court precedent

3 Subsequently, the Supreme Court specifically noted the similarity among the residual clauses of § 924(c) and the ACCA. See Davis, 139 S. Ct. at 2325–26; see also Sessions v. Dimaya,

(2018) (relying on Johnson to find

(b)’s residual clause, which is virtually identical to § 924(c)’s residual clause, unconstitutionally vague). 10 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 11 of 39

had effectively foreclosed the claim McKinney now asserts. It was not until 2015, when

the Court decided Johnson, that it struck down a residual clause for vagueness and therefore

it was not until then that this claim became “reasonably available.” See Reed,

.

Moreover, before 2015, the practice within our circuit — and indeed, across circuits

— was well entrenched. See

. Our court hewed closely to the Supreme Court’s

resistance to void-for-vagueness challenges in cases involving residual clauses in the

ACCA and elsewhere. See, e.g., United States v. Mobley,

, 632 n.7 (4th Cir.

2012); United States v. Hudson,

, 268–69 (4th Cir. 2012).

With respect to § 924(c)’s residual clause, specifically, we have found no cases in

any federal court of appeals prior to the Supreme Court’s issuance of Johnson in 2015 that

adopt a vagueness argument. Again, it was only after the Supreme Court issued Johnson

that courts of appeals, including our own, began to reconsider the constitutionality of

§ 924(c)’s analogous residual clause. See, e.g., Simms,

; United States v.

Douglas,

(1st Cir. 2018); Ovalles v. United States,

(11th

Cir. 2018); United States v. Barrett,

(2d Cir. 2018); United States v.

Eshetu,

(D.C. Cir. 2018); United States v. Salas,

(10th Cir.

2018). Accordingly, prior to 2015, there was “almost certainly . . . no reasonable basis

upon which an attorney previously could have urged a . . . court to adopt the position”

ultimately endorsed by the Supreme Court in Johnson. See Reed,

. Thus,

McKinney has established cause. See Jones v. United States,

(8th Cir.

2022) (finding cause for procedural default under Reed where defendant’s 2005 conviction

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for a violation of § 924(c) no longer had a valid predicate); United States v. Garcia,

, 480 (10th Cir. 2020) (finding cause for procedural default where defendant’s

2013 conviction for a violation of § 924(c) was invalid after Davis).

Seeking to avoid this conclusion, the Government ignores Reed and instead relies

on Bousley for the proposition that “futility cannot constitute cause” if “a claim was

‘unacceptable to that particular court at that particular time.’” 523 U.S. at 622–23 (quoting

Engle v. Isaac,

, 130 n.35 (1982)) (finding no cause because “at the time of

petitioner’s plea, the Federal Reporters were replete with cases” considering the same

argument). But Bousley is inapposite. The claim in Bousley did not arise out of the

Supreme Court overturning its own precedent. See Lassend v. United States,

(1st Cir. 2018); Gatewood v. United States,

(6th Cir. 2020) (noting

that Reed remains the “controlling decision” where Supreme Court precedent forecloses an

argument at the time of procedural default). 4 That distinction is critical. At the time of his

guilty plea in 2012 and sentence in 2013, McKinney’s claim would have been rejected by

our court and every other circuit due to then-controlling Supreme Court precedent.

In sum, when McKinney pled guilty in 2012 and was sentenced in 2013, the

Supreme Court had implicitly approved § 924(c)’s residual clause. Only several years

later, in 2015, did the Court in Johnson cause a sea change in the law, disapproving its

prior precedent upholding similar residual clauses against void-for-vagueness challenges.

4 For the same reasons, we are unpersuaded by the Government’s reliance on Whiteside v. United States,

, 185–87 (4th Cir. 2014) (en banc), and United States v. Sanders,

, 145–46 (4th Cir. 2001), neither of which involved claims based on the Supreme Court overturning its own precedent. 12 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 13 of 39

And it was not until 2019 that Davis dealt the final blow to § 924(c)’s residual clause.

McKinney’s case falls squarely within Reed’s “novelty” framework, and so he has shown

cause for his procedural default.

B.

We turn to the prejudice prong. To establish prejudice, a defendant must show that

the error “worked to his actual and substantial disadvantage.” United States v. Frady,

(1982) (emphasis in original). The Supreme Court has yet to define the exact

contours of the prejudice standard in the § 2255 procedural-default context. See id. at 168

(noting that “future cases” would provide “further elaboration” on prejudice, outside the

context of erroneous jury instructions given at trial).

What is clear is that McKinney’s § 924(c) conviction subjects him to imprisonment

for conduct that the law does not make criminal. In finding another § 2255 claim

cognizable, the Supreme Court has explained that if the defendant’s “conviction and

punishment are for an act that the law does not make criminal,” then “[t]here can be no

room for doubt that such a circumstance ‘inherently results in a complete miscarriage of

justice’ and ‘present[s] exceptional circumstances’ that justify collateral relief under

§ 2255.” Davis v. United States,

, 346–47 (1974) (emphasis added).

Accordingly, in analogous cases, our sister courts have found prejudice justifying collateral

relief when the defendant’s conviction or sentence is no longer “authorized by law.” See,

e.g., Raines v. United States,

(6th Cir. 2018) (ACCA); United States v.

Snyder,

, 1127–28 (10th Cir. 2017) (same); Garcia, 811 F. App’x at 480 (§

924(c)).

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However, the Government argues, and the district court held, that McKinney cannot

establish prejudice because, had McKinney “raised his constitutional challenge” at or prior

to sentencing, the Government “would not have dismissed the . . . § 924(c) charge

predicated on the Hobbs Act robbery,” and McKinney “likely would have received the

same sentence.” See McKinney v. United States, No. 1:16-cv-00149-MR,

, at *5–6 (W.D.N.C. Jan. 29, 2020). This is so, the Government contends, because

the dismissed § 924(c) count was based on an (also dismissed) substantive Hobbs Act

robbery count, which could constitute a valid predicate. The dissent, too, espouses this

theory. 5

But where the record in a case shows that a count of conviction is now invalid, no

precedent authorizes a court to then rely on a dismissed count to negate that demonstrated

prejudice. Rather, in determining prejudice, we ask whether it is likely a defendant, had

he known of the error, would not have pled guilty to the count of conviction. See, e.g.,

United States v. Dominguez Benitez,

(2004); United States v. Heyward,

(4th Cir. 2022). We do not look to whether it is likely a defendant, had he known

of the error, would not have pled guilty to a dismissed count. (Of course, in this case, the

record also makes abundantly clear that McKinney likely would not have pled guilty to the

dismissed § 924(c) count — two plea hearings failed because he resolutely refused to plead

guilty to the dismissed counts. S.J.A. 28‒31; see Heyward,

(explaining

that we may look to “contemporaneous evidence to substantiate a defendant’s expressed

5 To be clear, the analysis set forth in the next five paragraphs constitutes our fact specific holding in this case, not some “per se rule” conjured up by the dissent. 14 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 15 of 39

preferences” (quoting Lee v. United States,

(2017)). The dissent

ignores the record when stating that our statement of this fact is “incorrect.”)

It is telling that none of the cases cited by the Government or the dissent permit an

appellate court to base its prejudice holding on a count the Government agreed to dismiss,

and the district court did dismiss, in exchange for the defendant’s guilty plea. None of

those cases require or permit an appellate court to search for an alternative, valid predicate

offense that the Government did not charge as the predicate for the count of conviction.

And none of those cases permit an appellate court to find a crime for which a defendant

was not convicted to uphold an indisputably invalid conviction and justify the sentence for

that invalid conviction.

Adhering to what simple justice requires in this circumstance, the Eighth Circuit in

Jones,

, recently rejected the Government’s similar attempt to use a

dismissed count to negate a finding of prejudice. There, as here, the defendant challenged

his § 924(c) conviction because it was no longer sustained by a valid predicate offense. Id.

There, as here, the Government claimed that, had it known of the error, it could have based

the § 924(c) count on an alternative predicate offense: carjacking, the factual basis for

which the defendant had admitted at the plea hearing. Id. at 525. But the Eighth Circuit

rejected this argument, reasoning that the “carjacking was not charged as a predicate crime

of violence,” and so the Government could not rely on it to sustain that count and negate a

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finding of prejudice. Id. (emphasis added). So it is here. 6 We likewise refuse to substitute

an alternative predicate, not charged as the basis for the § 924(c) count of conviction, to

negate a finding of prejudice.

Moreover, delving into whether a defendant ultimately would have received the

same sentence, based on an uncharged or dismissed charge, improperly equates the

standards for actual innocence and prejudice for the purpose of excusing procedural

default. See United States v. Jimenez-Segura,

, 338 (E.D. Va. 2020)

(Ellis, J.). Actual innocence and prejudice are not one and the same. The Supreme Court

has made that clear, stating that actual innocence requires “a stronger showing than that

needed to establish prejudice.” See Schlup v. Delo,

(1995). To

demonstrate actual innocence sufficient to excuse procedural default, a defendant must

show that he is actually innocent of (i) the charge on which he was convicted and (ii) more

serious, dismissed charges. Bousley,

. In contrast, demonstrating prejudice

sufficient to excuse procedural default “does not require consideration of the charges

foregone by the Government in the course of plea bargaining.” Jimenez-Segura, 476 F.

Supp. 3d at 338; see also Calderon v. United States, No. 7:12-CR-37-FA-2,

Thus the only other appellate court to consider the question has recently held, as we do, that a dismissed count cannot negate a finding of prejudice. The dissent does not, and cannot, distinguish Jones, and so instead attempts to trivialize it as “brief” and “incorrect,” Dis. Op. at 36 n.2, or wish it away,

(stating “the majority cites no binding or persuasive case for the proposition that it is illegitimate to consider dismissed counts as part of the factual prejudice inquiry”). But see Lee,

; Dominguez Benitez, 542 U.S. at 83‒85; Schlup,

(all lending support to the holding reached here and in Jones). 16 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 17 of 39

821152 (E.D.N.C. Mar. 17, 2022) (following the “thoughtful and well-reasoned opinion”

in Jimenez-Segura).

Furthermore, conviction and sentencing are quintessentially tasks carried out at the

trial level. The Government and the dissent would instead have this appellate court convict

McKinney in the first instance of a § 924(c) count, which the Government did not charge

as the count of conviction, to which McKinney did not plead guilty, and which the

Government in fact dismissed. That we cannot do. Cf. United States v. Hodge,

(4th Cir. 2018) (“We will not allow the Government to change its position

regarding which convictions support [an] ACCA enhancement now that one of its original

choices . . . cannot do the job.”).

For all these reasons, we reject the Government’s, and now the dissent’s, prejudice

theory and decline to import the dismissed § 924(c) charge into our assessment of

prejudice. Fact-specific considerations underlying the dismissed counts are for the

Government to raise on remand when the district court can assess them in exercising its

discretion to carry out further proceedings consistent with this opinion. Because the error

here worked to McKinney’s “actual and substantial disadvantage,” he has established

prejudice to excuse his procedural default.

* * *

Before concluding, we briefly address the dissent’s accusation that we have

established a rule “fundamentally at odds with the most basic of principles of our criminal

justice system.” Dis. Op. at 19. In fact, it is the dissent that would establish such a rule,

convicting a defendant in the first instance of a § 924(c) count to which the defendant

17 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 18 of 39

refused to plead guilty and which the Government never charged as the count of conviction,

but instead dismissed.

V.

The district court erred by denying McKinney’s § 2255 motion on the grounds that

the appeal waiver barred his claim and that he failed to show cause and prejudice to excuse

his procedural default. Therefore, we reverse the judgment of the district court. We

remand the case with instructions to vacate McKinney’s § 924(c) conviction predicated on

Hobbs Act conspiracy and for further proceedings consistent with this opinion, including

resentencing on the remaining count.

REVERSED AND REMANDED

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WILKINSON, Circuit Judge, dissenting:

Donzell McKinney pleaded guilty in 2012 to an

(c) violation. His

plea was altogether valid and lawful when it was entered. Section 924(c) makes criminal

the use of a firearm in connection with a crime of violence. The predicate crime of violence

in McKinney’s case was Hobbs Act conspiracy, which was entirely understandable, given

the terms of the statute and McKinney’s undisputed criminal conduct. McKinney never

raised any objection to the validity of this predicate, thereby procedurally defaulting the

claim.

Seven years after his plea was entered, Hobbs Act conspiracy was ruled invalid as

a § 924(c) predicate crime of violence. United States v. Simms,

, 233–34 (4th

Cir. 2019) (en banc). In the normal course, McKinney must establish cause and prejudice

to excuse his procedural default. This would involve a review of the plea bargain and

proceedings as well as McKinney’s own conduct, in an effort to determine whether absent

the error there was a “substantial likelihood” that McKinney would not have pleaded guilty.

United States v. Frady,

(1982). The majority did absolutely none of this.

It did not confront the sheer strength of the case against McKinney. It proceeded to rule

that prejudice was automatic irrespective of whether the relevant facts establish it. This per

se rule is fundamentally at odds with the most basic of principles of our criminal justice

system.

The majority strenuously seeks to shed the per se label, but its protestations fail to

obscure the fact that this is both formally and functionally a per se case. See Maj. Op. at 14

n.5. Its per se rule is plain: All one needs to do is examine the present status of a past

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predicate to reverse a § 924(c) conviction. See id. at 13–15 (repeatedly emphasizing the

per se proposition). With all respect to my friends in the majority, a wolf in sheep’s clothing

remains a wolf.

I.

Prejudice in our criminal justice system is preeminently a factual matter. The

majority wishes to convert prejudice to a matter of per se reversal under law. This not only

denies courts the ability to make individualized assessments of a defendant’s

circumstances. It often privileges, as here, the most violent and least deserving criminals.

Indeed those offenders will become free riders on the majority’s per se train. The Supreme

Court has repeatedly flagged courts off the tracks that the majority is taking here.

Just consider the facts. Donzell McKinney indisputably violated

(c)

by using a firearm during a Hobbs Act robbery. According to the Presentence Investigation

Report:

Donzell Ali McKinney and Clinton Hugo Wilson, Jr.[] entered the restaurant, one armed with a black handgun, and ordered the manager A. Booher to get money out of the safe.

The investigation revealed McKinney and [Wilson] dressed in hoodies approached two women, O. Kulakova and B. Scott who had left the restaurant. Kulakova was hit in the head by McKinney and then he ordered the females to the ground outside the restaurant and started beating on the door of the restaurant. Wilson dragged witness Scott through the doorway into the restaurant. Witness K. Robinson drove up to the restaurant in her vehicle, saw a woman lying on the ground in the doorway and saw Booher on his knees with his hands in the air. McKinney went to Robinson, ordered her out of the vehicle, put a gun to her head

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and ordered her inside the restaurant. Booher went to the door to investigate the noise and McKinney pointed a black 9 mm handgun at Booher and yelled, “Open the fucking door!” When Booher did not move fast enough, McKinney fired a round in the direction of Booher. . . . Officers . . . conducted an extensive manhunt and located McKinney hiding in bushes . . . . Officers also recovered a loaded Hi Point 9mm pistol.

J.A. 162. McKinney’s only objections to the PSR were that he fired his weapon “toward

the ceiling” rather than at Booher and that he did not point his weapon at Robinson’s head.

J.A. 177.

Given these horrific and largely uncontroverted facts, the government only agreed

to dismiss the Hobbs Act robbery count and the related § 924(c) charge on the condition

that McKinney plead guilty to conspiracy to commit Hobbs Act robbery and a § 924(c)

count predicated on that conspiracy. McKinney therefore suffered absolutely no prejudice

from his now invalid conspiracy-based § 924(c) conviction: Had the error existed at the

time of the plea, McKinney would unquestionably have been convicted of an identical

§ 924(c) count predicated on the substantive robbery offense that he undoubtedly

committed. McKinney therefore cannot satisfy his burden to show “actual prejudice” that

would excuse his procedural default. United States v. Frady,

(1982); see

Wainwright v. Sykes,

, 90–91 (1977) (establishing “cause and prejudice”

standard).

The majority errs in concluding otherwise and sets a damaging precedent for future

procedural-default cases. It holds that McKinney has established prejudice to excuse his

procedural default because his Ҥ 924(c) conviction subjects him to imprisonment for

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conduct that the law does not make criminal.” Maj. Op. at 13; see id. at 17 (“reject[ing] the

Government’s . . . prejudice theory”—i.e., that McKinney suffered no prejudice because

he “likely would have received the same sentence”). The sweep of this reasoning is vast

and consequential. Under the majority’s view, all individuals convicted under later-

invalidated provisions have suffered prejudice regardless of the specific facts of each case.

This reasoning constructs a per se rule that a conviction based on a predicate later deemed

invalid is invariably and automatically deemed prejudicial—even if the defendant would

have been convicted of an offense of comparable and indistinguishable seriousness had the

error existed at the time of the plea.

The majority makes a pass at the importance of case-specific inquiries by suggesting

the government might move to raise the dismissed counts on remand. See id. at 17. That

has it exactly backward. It is defendant’s burden to establish prejudice prior to any vacatur

of his conviction. And that burden can only begin to be satisfied by pointing right here and

now to facts specific to defendant’s case.

This plea was entered long ago. It was not the product of some primitive system of

criminal justice. It was the valid outcome of a valid process. It was properly negotiated. Its

terms were fairly arrived at. The conviction and sentence have been settled. They should

be allowed to rest. The Supreme Court has commanded that given the important finality

interests implicated by collateral review of procedurally defaulted claims, the prejudice

inquiry is stringent, fact-intensive, and requires “actual and substantial disadvantage.”

Frady,

. The majority disregards the Court’s clear instruction across a

myriad of contexts that structural error is the rare exception; fact-specific prejudice

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inquiries are the rule. It subverts the parties’ plea bargain and undermines the philosophy

behind guilty pleas. And it creates a palpable tension with the factual innocence

requirement articulated in Bousley v. United States,

(1998).

The majority’s decision is retroactivity with a vengeance. It undermines the criminal

justice system’s commitment to finality at every turn. Procedural defaults are meant to

protect the finality of convictions. Now they are weakened years later. How many

witnesses are no longer available? How much do they still recall? Not content with this

assault on finality, the majority erodes the finality of guilty pleas as well, allowing one

party to an agreement to back away from it and take whatever later benefits may drift its

way. In so doing, the majority repositions not only the utilization of prosecutorial

resources. It commits executive review generally to an ongoing retrospective,

notwithstanding the demands that the commission of present crimes make upon our

coordinate branch of government.

Retroactivity, of course, does have its place. The First Step Act is retroactive in its

application, see First Step Act of 2018, Pub. L. No. 115–391,

, but in a

manner carefully tailored to individual circumstances. What makes the majority’s version

of retroactivity so pernicious is that it applies irrespective of those circumstances, thereby

undermining the primacy of individualized consideration in our system of justice.

Recognizing the naïve idealization of a perfect criminal justice system, factual

inquiries yet insist that proceedings be practically grounded and, above all, fundamentally

fair. Delaware v. Van Arsdall,

(1986). Again, the facts, had they been

so much as consulted, are fatal to McKinney’s case. The government would never have

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dismissed the substantive Hobbs Act count had the Hobbs Act conspiracy count been

anything but a wholly lawful predicate at the time of McKinney’s plea. McKinney’s

undisputed conduct—discharging a firearm to threaten victims during a violent and

dangerous robbery of a restaurant—lies at the heart of what Congress sought to criminalize

through § 924(c). The real prejudice here is not to the defendant but to the public, which

must suffer the consequences of the majority’s ill-advised rule.

II.

The Supreme Court has made clear that to establish the prejudice required to excuse

procedural default, a habeas petitioner must show that given the “particular circumstances

of [his] individual case,” the error “worked to his actual and substantial disadvantage.”

Frady,

. 1 McKinney comes nowhere close.

A.

A habeas petitioner must demonstrate “cause” and “actual prejudice” to excuse his

procedural default. See Wainwright, 433 U.S. at 90–91. The Supreme Court explained what

constitutes “actual prejudice” in United States v. Frady.

Inasmuch as the majority has all but ignored Frady, I am compelled, with apologies

to the reader, to briefly traverse what should be familiar ground. The fact that this case

1 Because this case concerns the showing of prejudice necessary to excuse a habeas petitioner’s procedural default, Frady is the controlling standard. No one disputes that McKinney’s conviction is now invalid given that United States v. Davis,

(2019), “applies retroactively to cases on collateral review.” In re Thomas,

(4th Cir. 2021); see Schriro v. Summerlin,

, 351–53 (2004) (explaining that “new substantive rules generally apply retroactively”).

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comes to us on collateral review is of salient importance, not just as another factor for the

majority to toss into the hopper. The Frady Court began by “reaffirm[ing] the well-settled

principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle

than would exist on direct appeal”—i.e., the plain-error standard. 456 U.S. at 166; see

Murray v. Carrier,

, 493–94 (1986) (“The showing of prejudice required

under Wainwright v. Sykes is significantly greater than that necessary under . . . ‘plain

error.’”). A more stringent collateral-review standard is appropriate because

“postconviction collateral attacks” implicate society’s interest in finality: the “respect” that

“a final judgment commands.” Frady, 456 U.S. at 164–65 (“Once the defendant’s chance

to appeal has been waived or exhausted . . . we are entitled to presume he stands fairly and

finally convicted.”). So to establish eligibility for collateral relief on a procedurally

defaulted claim, the petitioner “must show both (1) ‘cause’ excusing his double procedural

default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.”

at

167–68.

Frady and subsequent cases drive home the point that actual prejudice is a strict,

fact-specific standard. The Frady Court explicitly rejected the idea, now embraced by the

majority, that an error could “amount[] to prejudice per se, regardless of the particular

circumstances of the individual case.” Id. at 170. Rather, the petitioner “must shoulder the

burden of showing, not merely that the errors at his trial created a possibility of prejudice,

but that they worked to his actual and substantial disadvantage.” Id.; see also Carrier,

(quoting this standard); Shinn v. Ramirez,

, 1733 (2022) (same).

The Court then conducted a fact-specific inquiry and concluded that given “the strong

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uncontradicted evidence . . . in the record,” there was “no substantial likelihood” of a

different result; the petitioner would have been convicted regardless of the error. Frady,

456 U.S. at 172–74. So there was no actual prejudice.

.

Thus, for a habeas petitioner to establish actual prejudice, he must show, based on

the specific facts of his case, that the error caused him an “actual” and “substantial”

disadvantage. He must show that there is a “substantial likelihood” that he would have

received a better outcome but for the error. The majority all but ignores this standard. The

effect is to relegate Supreme Court decisions to no more than provisional status.

B.

Given the uncontested facts of McKinney’s case, there is no substantial likelihood

that he would be in a better position but for the subsequently invalidated, conspiracy-

predicated § 924(c) charge. There is no way he can show that being charged with and

pleading guilty to this later invalidated count “worked to his actual and substantial

disadvantage.” Frady,

. The majority, fleeing the facts, does not come close

to establishing that he could.

McKinney was originally charged by a grand jury with Hobbs Act robbery,

conspiracy to commit Hobbs Act robbery, and a § 924(c) count predicated on the

substantive offense. McKinney has never denied that he committed these offenses; his

“offense conduct was uncontroverted, and it remains uncontroverted to this day.”

McKinney v. United States, No. 1:16-cv-00149-MR,

, at *6 (W.D.N.C.

Jan. 29, 2020). The government agreed to dismiss the substantive robbery count and

§ 924(c) count predicated on it only if McKinney pleaded guilty to the conspiracy count

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and a conspiracy-predicated § 924(c) count. McKinney does not dispute that if the court

had found the conspiracy-predicated § 924(c) count invalid, the government “would not

have dismissed” the substantive robbery count or the § 924(c) count predicated on it.

McKinney,

, at *5. So even if McKinney had not faced the invalid

conspiracy-predicated § 924(c) count, he would have faced an equivalent one that would

have carried the same statutory penalties and subjected him to the same Sentencing

Guidelines. See

(c)(1)(A)(iii); U.S.S.G. § 2k2.4(b).

The majority suggests fleetingly that the defendant would not have pleaded guilty.

Maj. Op. at 14. This is incorrect. Given these facts, there is no substantial likelihood that

McKinney “would not have pleaded guilty” to the § 924(c) count predicated on substantive

Hobbs Act robbery had the conspiracy-predicated § 924(c) count been unavailable. Hill v.

Lockhart,

(1985). The prejudice inquiry in guilty-plea cases “depend[s] in

large part on a prediction” about the “likely . . . outcome at a possible trial” judged

“objectively, without regard for the idiosyncrasies of the particular decisionmaker.”

at

59–60 (quotation marks omitted). Given the objective nature of the inquiry, the majority’s

assertion that McKinney refused to plead guilty at two plea hearings misses the point.

Objectively, McKinney’s prospects at trial were bleak given the overwhelming, undisputed

evidence that he did in fact fire a gun while committing a Hobbs Act robbery. Given that

evidence—and the downward adjustment for accepting responsibility that he only could

receive by pleading guilty, see U.S.S.G. § 3E1.1—there is no substantial likelihood that

McKinney would not have pleaded guilty.

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That same evidence would have left McKinney dead in the water at trial. Had

McKinney taken his chances before a jury, the government would have shown that he

stormed a restaurant armed with a handgun, ordered a woman into the restaurant at

gunpoint, fired a warning shot to coerce the manager’s compliance, and was found hiding

in the nearby bushes. There is no substantial likelihood that a jury would have acquitted

him of using a firearm during and in relation to a Hobbs Act robbery.

Please consider the facts. Whether he would have pleaded guilty or gone to trial,

one way or another McKinney would have been convicted of the § 924(c) count predicated

on his violent and undisputed Hobbs Act robbery. He would have faced the same statutory

penalties and Sentencing Guidelines range as he did for the invalid conspiracy-based

§ 924(c) charge and, in all likelihood, his sentence would have been the same as or worse

than the one he actually received. See McKinney,

, at *6. Because the

error did not work to McKinney’s “actual and substantial disadvantage,” he has shown no

prejudice that would excuse his procedural default, Frady,

, and courts

should respect his long and fairly settled federal conviction and sentence.

III.

As John Adams famously said, “facts are stubborn things.” To the majority, facts

are not only stubborn, but scary. Ignoring the facts, the majority devises a per se rule that

there is prejudice whenever a defendant is convicted under a predicate that is later ruled

invalid. Under such a rule, a court need not consider the facts of the case to reverse a

conviction; it need only examine the later status of the predicate offense at issue. In short,

the majority concocts a legal test in which facts are irrelevant. Imagine a terrifying or

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heartbreaking scene through the eyes of the victims. Then tell yourself that because the

guilty plea from that tragedy rested on a Hobbs Act conspiracy (rather than substantive)

predicate, the whole conviction must, no questions asked, be set aside.

A.

This should not be. The majority’s creation of a per se rule of prejudice defies the

Supreme Court’s repeated instruction that structural errors—which result in “automatic

reversal” without any showing of actual prejudice—are “highly exceptional.” Greer v.

United States,

, 2099–2100 (2021) (quoting Neder v. United States,

(1999), and United States v. Davila,

(2013)). Rather, across a

variety of contexts, “the ‘general rule’ is that ‘a constitutional error does not automatically

require reversal of a conviction’”: Errors must cause prejudice, which is a factual matter

that depends on the defendant showing specifically how the error affected him.

at 2099

(quoting Arizona v. Fulminante,

(1991)).

This general rule makes sense. The hallmark of structural error is that defendants

get their convictions reversed no matter how undeserving they are or how violent their acts.

This case is Exhibit A: McKinney’s violent armed robbery was exactly what Congress

wanted to punish through § 924(c). Conversely, the great advantage of factual prejudice

determinations is that they allow courts to inquire into the strength of the case and make

individualized determinations as to whether the defendant would have been convicted even

had no error been made. But the majority ignores these factors, electing instead to forgo

tailored factual analysis in favor of an ill-fitting, precedent-defying per se rule.

29 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 30 of 39

B.

Plain error and procedural default inquiries both underscore the intensive factual

nature of the prejudice inquiry. It is therefore particularly instructive to consider what the

Supreme Court has said about prejudice being a factual inquiry in the context of plain-error

review. Plain error applies on direct review of errors that were not raised in the district

court. See United States v. Olano,

(1993); Fed. R. Crim. P. 52(b). Under

the Olano framework, a court may only grant relief if the defendant shows (1) there was

an error; (2) that was “plain”; (3) that affected “substantial rights”—“which generally

means that there must be a reasonable probability that, but for the error, the outcome of the

proceeding would have been different”—and (4) the court concludes “the error had a

serious effect on the fairness, integrity or public reputation of judicial proceedings.” Greer,

141 S. Ct. at 2096–97 (quotation marks omitted). The defendant bears the “difficult”

burden of establishing all four requirements.

at 2097 (quoting Puckett v. United States,

(2009)).

A note to the majority: The Supreme Court has said time and again that the third

and fourth Olano prongs are fact-specific inquiries. With respect to the third prong

(prejudice), the Supreme Court has found no reasonable probability of a different outcome

even where the jury was not instructed on an element of the crime. See

at 2097–98.

Greer considered whether the defendant was prejudiced by the district court’s failure to

instruct the jury that, in a felon-in-possession case, the government must prove not only

that the defendant knew he possessed a firearm, “but also that he knew he was a felon.” Id.

at 2095; see Rehaif v. United States,

, 2199–2200 (2019). The Court

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“consider[ed] the entire record” and concluded that because Greer had been convicted of

multiple felonies, stipulated to that fact at trial, and had never argued that he did not know

he was a felon, there was no “reasonable probability that a jury would have acquitted him”

“but for the Rehaif error.” Greer, 141 S. Ct. at 2097–98. Despite the error’s seriousness,

the defendant was not, given the facts, prejudiced.

With respect to the fourth prong (“fairness”), both the Supreme Court and this Court

have repeatedly stressed the fact-specific nature of the inquiry. In Puckett, the Supreme

Court explained that this prong “is meant to be applied on a case-specific and fact-intensive

basis.”

. Accordingly, the Court considered the facts of the defendant’s case

and concluded that the error did not “compromise the public reputation of judicial

proceedings.”

. And Puckett’s characterization of this prong as fact-intensive has

been repeatedly reaffirmed. See, e.g., Rosales-Mireles v. United States,

(2018); United States v. Edgell,

, 290–91 (4th Cir. 2019); United States

v. Heyward,

(4th Cir. 2022).

The lessons of the Supreme Court’s plain-error precedents—that prejudice is fact-

specific and per se rules are extraordinary—apply a fortiori to the “actual prejudice”

inquiry we apply on collateral review of procedurally defaulted claims. As noted, because

collateral review implicates “society’s justified interests in the finality of criminal

judgments,” habeas petitioners attempting to show actual prejudice “must clear a

significantly higher hurdle than would exist on direct appeal.” Frady,

;

see United States v. Pettigrew,

(D.C. Cir. 2003) (“[T]he ‘showing of

prejudice required’ to overcome procedural default on collateral review ‘is significantly

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greater than that necessary’ to establish plain error on direct review.” (quoting Carrier, 477

U.S. at 493–94)). Because “actual prejudice” is a more demanding standard than plain-

error prejudice, we should be even more attentive here to specific facts and even less

willing to adopt per se rules. Neglect of Supreme Court precedent is not an option.

C.

The Supreme Court has also eschewed per se rules of prejudice and emphasized its

factual nature in other contexts.

First, in Neder v. United States, the Supreme Court applied the harmless-error

standard to a district court’s omission of a crime’s materiality element from its jury

instructions.

. The Court rejected the argument that this error was structural,

noting that omitting an element does not “necessarily render a criminal trial fundamentally

unfair or an unreliable vehicle for determining guilt or innocence.”

. Rather, the

Court concluded that given the facts of the case, it was “beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.”

(quotation marks

omitted). “The evidence supporting materiality was so overwhelming” that “no jury could

reasonably find” otherwise, so the error was harmless.

. Neder is especially

instructive because the Court found no prejudice even when it was the government’s burden

to prove the lack of prejudice beyond a reasonable doubt; here, by contrast, it is

McKinney’s burden to show actual and substantial prejudice. Compare Neder,

, with Frady,

.

Second, in ineffective-assistance-of-counsel cases, the Supreme Court generally

requires the defendant to show that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Strickland

v. Washington,

(1984). This prejudice determination requires courts to

“consider the totality of the evidence before the judge or jury.”

. Consistent with

the Court’s general approach to prejudice inquiries, prejudice is presumed only in the most

exceptional cases. See

(noting “state interference with counsel’s assistance” and

“actively represent[ing] conflicting interests” as circumstances where prejudice is

presumed (quotation marks omitted)). But those cases aside, ineffective-assistance claims

“are subject to a general requirement that the defendant affirmatively prove prejudice.”

.

Finally, the Supreme Court’s test for whether a Brady violation has occurred

incorporates a factual prejudice inquiry. Brady is violated when the State suppresses

evidence favorable to the accused and that evidence is “material”—i.e., “if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Strickler v. Greene,

(1999)

(quotation marks omitted); see Brady v. Maryland,

(1963). This inquiry is fact-

intensive: “[T]he question is whether the favorable evidence could reasonably be taken to

put the whole case in such a different light as to undermine confidence in the verdict.”

Strickler,

(quotation marks omitted). And the Court has, in fact, found that

suppressed, favorable evidence was immaterial. See, e.g.,

.

* * *

Sooner or later, it must occur to my friends in the majority that they are swimming

against a powerful tide. In case after case, context after context, the Supreme Court has

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reaffirmed the fact-intensive nature of prejudice. See, e.g., Frady, 456 U.S. at 168–70

(collateral review of procedurally defaulted claims); Greer, 141 S. Ct. at 2097–98 (plain

error), Neder, 579 U.S. at 15–17 (harmless error), Strickland,

(ineffective

assistance), Strickler,

(Brady). Through these cases, the Supreme Court

has firmly rooted our judicial system in the foundational principle that courts will not

disturb convictions unless there is a factual showing of prejudice. But the majority ignores

this caselaw and the need for individualized consideration of defendants that flows from it.

Facts look to real world effects. Justice is instead meted out by the majority under an

abstract rule that bundles the least deserving with the most. While some countries may

favor this indiscriminate approach, ours looks person-by-person in an effort to balance

individual rights with the need for public safety.

IV.

As if all this were not enough, the majority subverts the parties’ plea bargain and

undermines the entire philosophy behind guilty pleas. “Indiscriminate[ly]” allowing

prisoners to escape their guilty pleas through collateral attacks on their sentences “would

eliminate the chief virtues of the plea system”—“speed, economy, and finality.”

Blackledge v. Allison,

(1977). A plea bargain is exactly that: an exchange

of benefits between the defendant and the government. The government conserves judicial

and prosecutorial resources and obtains the certainty that a guilty and often dangerous

criminal receives punishment. The defendant receives some certain present benefits—for

instance, acceptance-of-responsibility sentencing adjustments and, crucially, the dismissal

of additional charges that the government could have proved at trial. In return, the

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defendant relinquishes the possibility of acquittal at trial and the possibility that he might

benefit from some future legal development in his favor.

That is exactly what happened here. McKinney received significant present benefits

in exchange for pleading guilty. Most notably, despite the overwhelming evidence of

McKinney’s guilt, the government dismissed the substantive Hobbs Act robbery count—

thereby likely reducing his potential prison sentence. McKinney, in return, pleaded guilty

to the Hobbs Act conspiracy count and a § 924(c) count predicated on that offense. In so

doing, McKinney waived his rights to appeal. By pleading guilty, McKinney voluntarily

and intelligently accepted that he would not benefit from any subsequent legal development

invalidating his conspiracy-predicated § 924(c) count unless he could overcome the

procedural-default bar on collateral review. This affirmative waiver went far beyond the

typical case of procedural default in which a party inadvertently fails to contest an issue.

The majority protests that it is inappropriate to consider dismissed counts as part of

the prejudice inquiry in the plea-bargaining context, suggesting that no precedent permits

a court to consider such counts. Maj. Op. at 15. Respectfully, that has it exactly backwards:

It is telling that the majority cites no binding or persuasive case for the proposition that it

is illegitimate to consider dismissed counts as part of the factual prejudice inquiry. That

inquiry, as explained above, asks whether an error worked to a defendant’s “actual and

substantial disadvantage.” Frady,

. That standard does not limit our

consideration of whether the defendant would have pleaded guilty to an identical § 924(c)

offense predicated on a dismissed count. Indeed, as a matter of common sense, the

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availability of such a dismissed count to serve as a predicate offense at the government’s

disposal is highly relevant to the defendant’s decision to enter the plea that he did. 2

The majority subverts the parties’ bargain and grants McKinney a windfall. Despite

McKinney being indisputably guilty of (1) Hobbs Act robbery, (2) using a firearm during

the robbery, and (3) conspiracy to commit that robbery, the majority lets him skate with

just the later invalidated conspiracy conviction. All this despite the government only

agreeing to dismiss (1) and (2) if McKinney pleaded guilty to conspiracy and the attendant

§ 924(c) charge.

The majority again compromises the value of finality—that eventual and essential

point of termination in any criminal justice system that allows both society and the

individual a chance to pivot and look forward. At some point, the law may fairly and

properly be deemed conclusive, and the light of future possibility let in. Courts typically

safeguard the finality of guilty pleas by requiring defendants to “show a reasonable

probability that, but for the error, [the defendant] would not have entered the plea.” United

States v. Dominguez Benitez,

(2004) (applying reasonable-probability

standard to defendant seeking to withdraw guilty plea because of court’s plain error); Hill,

2 Once again, the majority flees the facts. It relies on the Eighth Circuit’s brief opinion in Jones v. United States,

(8th Cir. 2022), to support a finding of prejudice here. To the extent that Jones did not consider whether a dismissed count could serve as a predicate offense to sustain the defendant’s § 924(c) conviction, that was incorrect. To the extent the majority implies that any circuit overrides the clear teachings of the Supreme Court, I would respectfully suggest that is incorrect as well. To ascertain whether Jones and McKinney were prejudiced, a court must consider all the particulars of the case, as trial courts routinely do. It was up to the trial court in the first instance to determine the relevance of any particular factor, including any dismissed counts, to the entire prejudice analysis, as it did here. See J.A. 143–44. 36 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 37 of 39

(same with respect to withdrawing guilty plea because of ineffective

assistance of counsel). By granting McKinney relief despite his inability to show a

reasonable probability that he would not have pleaded guilty—much less any actual and

substantial disadvantage—the majority disregards the heightened finality interests here.

See Frady, 456 U.S. at 165–66, 170.

The government was thus stripped of the benefit of its bargain. It is no answer that

the majority implies that the government could move to reinstate the counts that it

dismissed pursuant to McKinney’s plea agreement. See Maj. Op. at 17. The statute that

allows the government to move to reinstate dismissed counts only permits it to do so after

the guilty plea has been “vacated on the motion of the defendant.”

(a)(3).

The case is then reset to square one and the virtue of finality is thereby undermined. The

majority thus allows the vacatur of McKinney’s guilty plea and the attendant subversion

of the parties’ bargain—all without a showing of actual prejudice.

V.

The majority’s per se prejudice exception is also in significant tension with Bousley

v. United States,

(1998), and the general rule of procedural default. A habeas

petitioner can overcome procedural default in either of two ways: by showing cause and

actual prejudice or by showing actual innocence.

. In the actual-innocence

context, the Supreme Court has instructed that “actual innocence means factual innocence,

not mere legal insufficiency.”

(quotation marks omitted). Thus, to determine

whether a petitioner meets this “very narrow exception,” Sawyer v. Whitley,

(1992), the court will look at “all the evidence . . . even if that evidence was not

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presented during petitioner’s plea colloquy.” Bousley, 523 U.S. at 623–24. The inquiry

completely turns on the facts of the case. So Bousley is yet another entry in the catalog of

cases where the Supreme Court has warned us away from per se rules and instead

commanded a fact-intensive analysis. The facts, of course, point to McKinney’s guilt at

every count and corner.

VI.

The majority pronounces a novel per se rule in disregard of the Supreme Court’s

repeated instructions. Strive as the majority undoubtedly does to listen to the Supreme

Court, I am afraid it has misheard. Its per se pronouncements ignore “the hierarchy of the

federal court system created by the Constitution and Congress.” Hutto v. Davis,

(1982) (per curiam).

Rather than rush to per se rules, we should walk slowly, lest we “riddle the cause

and prejudice standard” with ill-advised exceptions. Dretke v. Haley,

(2004). In fact, “it is precisely because the various exceptions to the procedural default

doctrine are judge-made rules that courts as their stewards must exercise restraint, adding

to or expanding them only when necessary.”

Such a warning was meant to ward off just

such decisions as the majority has rendered here.

Pronouncing broad new rules makes no sense in the fraught and salient context of

§ 924 crimes and Congress’s attempts to address the scourge of gun violence afflicting this

country. See Berkemer v. McCarty,

(1984) (Stevens, J., concurring)

(underscoring that principles of “restraint grow[] in importance the more problematic” the

issue is). Given the Supreme Court’s emphasis upon Congress’s goal of keeping the public

38 USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 39 of 39

safe from violent crimes committed with firearms, we should not lightly uproot the

sentences of those convicted under § 924(c). To declare an entire category of § 924(c)

convictions per se prejudicial ignores the facts of each case to the undeserved benefit of

some of society’s most violent offenders.

I respectfully dissent. I am left only with the hope that basic errors of transmission

between the Supreme Court and the courts of appeals will be more limited in future cases.

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